FOREST DIVERSION CLEARANCE

'E' is for efficiency, but what about empathy?

The MoEF’s recent move introducing e-filing of applications for approval of forest land diversion may facilitate procedural agility and efficiency, but precludes the interpretation of environmental and human complexities critical to a fair process. Kanchi Kohli elaborates.

“Forest clearances” as a term has become synonymous with the legal process through which the Ministry of Environment and Forests (MoEF) must assess proposals seeking diversion of forest land for non-forest use. Such non-forest use can be creation of plantations, conversion of land for industrial use, mining, hotels, buildings and so on.

With the promulgation of the Forest Conservation Act in 1980, the central government had taken upon itself the responsibility of scrutiny and recommendations on the proposals for diversion, prior to the final decisions to be taken by respective state governments. It was through an amendment to the Indian constitution that forests became part of the concurrent list giving both the central and the state government jurisdiction over its future.

It is important to note here that in its regulatory design, the FCA process did not necessarily provide for “clearance” as the final outcome.The framework laid out the steps for the assessment of proposals by administrative and forestry experts. This is preceded by a site inspection and a report prepared by the concerned Divisional Forest Officer (DFO).

Over the years, the increased demand for forestland for industry and mining has led to many inter-ministerial, community-industry and politico-legal conflicts. Delays in regulatory approvals, especially for forest diversion have often been touted as reasons for economic slowdown and corporate losses.

The forests of Khonoma in Nagaland. Pic: Kanchi Kohli

New route to ‘forest clearances’

On 9 May 2014, the Ministry of Environment and Forests (MoEF) published on its website a new Detailed Project Report (DPR) for implementation of “e-filing of forest clearance applications.” While the overt objective of this system may be to bring efficiency into the system of filing and processing of documents by making it electronic, the title itself gives away the approach with which the MoEF appears to be approaching the process of forest diversion. These are indeed forest ‘clearance’ applications.

The ‘owner’ of this document is Ernst and Young (E&Y), a professional consultancy, which specialises in developing business strategies and giving sector specific advice to various industries. Incidentally, E&Y in India has had a history of being involved with controversial Environment Impact Assessment (EIA) reports on projects involving forest land diversion.

One of the objectives of this study by E&Y is to “transform the department into a ‘paper-less’ office”. It also envisages a reduction in the turnaround time per activity in the forest diversion process, by making available real time information to project developers, achieving standardisation in the process, and realising the primary objective of enhancing efficiency, transparency and accountability.

The overarching clear objective of the exercise is to, “enhance ease & convenience of citizens & businesses in accessing information and services.”

Defining stakeholders

The crucial part of the report is a detailed table, which identifies “stakeholders” in the forest diversion process as laid out under the FCA, 1980. Based on a detailed study of this process, the E&Y report identifies the “key stakeholders involved in the end-to-end process of application for forest diversion till the approval/rejection” as perceived by them. This is presented along with an overview of their roles.

Stakeholders thus identified include the user agency (project developers), officials of the forest departments at the state level, the advisory committees at the state and national level who play a role in recommending rejection or approval, and the MoEF.

There is absolutely no mention of local communities dependent directly or indirectly on the forest that is going to be diverted. Such dependence and inter-relations may encompass livelihood sources, cultural connections, water, burial/cremation grounds and many more aspects which touch human lives.

This is most interesting, especially at a time when huge battles are being fought around diversion of forestland and claims by the tribal and forest dwelling communities related to their rights over such land. The procedure of recognition of rights of these communities has been laid out by the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA), 2006.

One significant purpose of the above law was to decentralise forest related decision-making in the country. In order to realise that, the recognition of forest rights and consent of the gram sabha (village assembly) must be incorporated as processes that need to be completed much before forest diversion takes place. In fact the newly formulated Forest Conservation Rules, 2014 - despite several limitations - also clearly recognize this.

While the rules don’t do justice to the FRA and its spirit, it does clearly put the responsibility on the District Collector to ensure that the FRA is implemented prior to the forest diversion proposal being considered before the MoEF.

In fact, irrespective of the formal rights process, tribal and forest dwelling communities have been directly contesting the diversion of forest land for industrial purposes. Examples of real grassroots-level struggles that pit conservation and community livelihoods against industrial land use abound -- visible in local mobilisation seeking to protect Niyamgiri against bauxite mining or Mahan against coal, or Mundra’s grazing lands withstanding conversion for ports and ship recycling, or Odisha’s coastal sand dunes pitted against POSCO’s steel plant.

Under these circumstances, the absence of any mention of forest-dwelling communities in the stakeholder list put out in the DPR is all the more conspicuous.

Success metrics of the DPR

The DPR has a clear set of tasks for its stakeholders, which mirror in many ways the practice that the FCA had put in place. For instance, the Divisional Forest Officers (DFO) and the Conservator of Forests (CF) remain responsible for examining factual details and feasibility of proposals; certifying maps, inspecting sites and enumerating loss of trees. The only difference is that in the new system, they would receive electronic documents instead of bulky hard copies.

More interesting than the above, however, is what this system envisages as the parameters that will determine its success. The DPR divides it into three aspects: speed, accuracy and attitudinal change.

The first deals with the time taken at each level for scrutiny of an application and for it to be forwarded to the next level as well as the turnaround time for the decision on the application. Faster the time taken, better would be the perceived functioning of the e-filing system for forest clearance.

Such a criterion completely overlooks the multiple sets of considerations and social realities that DFOs would need to look into while trying to ascertain whether a project is feasible or not. For instance, what if the loss of livelihoods cannot be compensated for? What if a rare and endangered species of plant or animal is going to be replaced? What about irreconcilable multiple claims over rights to the forest to be diverted?

The function of the accuracy principle, again, is to ensure completeness of the application submitted and improving accuracy in processing the application. The first puts the onus on the user agencies or the project authorities. It is their responsibility to ensure that the facts provided in their proposals, electronically or otherwise, are true to the ground realities.

In reality, there are numerous litigations pending in courts challenging the baseline on which forest diversions are sought. Population dependence is under-reported, biodiversity that the forest holds is erroneously reflected as miniscule, and on paper, even dense forests become degraded ones. The landmark judgment of the Supreme Court in the Lafarge mining case in Meghalaya brings out many of these facets.

The last angle in this theory of success is of attitudinal change, and this is where the report deals with the human side of the clearance process. Unfortunately, this, too, is reduced to issues such as readiness to work with external consultants, acceptance and adaptation of performance management measures, and improved performance of staff.

Much of it appears to focus on how the personnel involved in this new electronic FCA implementation take to their changed working environment, and how they may be prevented from perceiving it as a threat or hindrance. In fact, the DPR even presents a “Resistance Management Strategy” in Section 5.8. But beyond a narrow human resource management perspective, there is no reference to any broad attitudinal change towards forest land use in itself.

Forests in their complexity

What fascinates people about forest landscapes is their complexity. On the one hand, there is the human dependence on forests for food, fodder or fuel critical for everyday living. But forests also hold life, which extends beyond its anthropogenic face. Sources of rivers, complex interactions of plant life and the interspersed faunal life in the wild are all critical constituents of forests.

When a regulatory process seeks to change this landscape, it has to reduce this complexity to linear elements that are capable of being assessed during the processing of applications. The new DPR presents one way of achieving this. But in doing so, it not only overlooks issues such as livelihoods of communities, forest conflicts, forest rights, biodiversity claims; it also reduces almost everything that is found in the forest into a data set that needs to be filed in, handled and managed. It is only then that forests become legible in this electronic system, though what gets recorded may be inadequate to accommodate the realities of the land being diverted.